From whom may a court-appointed guardian ad litem for a minor accept payment of her fee, and can the insurer that is settling the minor's claim also pay the guardian ad litem?

Plain-English summary

An attorney was appointed guardian ad litem for a minor plaintiff in a personal injury case. The insurer petitioning the court to approve the settlement of the minor's claim was willing to pay the guardian ad litem's fee as a cost of obtaining the settlement. The committee was asked from whom the guardian ad litem may ethically accept payment, and whether the minor's parent could give informed consent to the third-party payment.

The opinion treats who should properly pay the fee as a legal question and notes that under Va. Code § 8.01-424 the court approves both the settlement and the distribution of proceeds, so the fee is subject to the court's approval. Assuming for the inquiry that the child is the guardian ad litem's "client," the committee applies Rule 1.8(f), which allows a third party to pay a lawyer's fee only if the client consents after consultation, there is no interference with the lawyer's independent judgment or the client-lawyer relationship, and Rule 1.6 information is protected.

The committee concludes that the minor cannot give the required consent, and the guardian cannot consent because it is her own receipt of third-party money that is at issue. Drawing on LEO 1725, it reasons that the court is the gatekeeper for the child's interests, so the payment should be disclosed to and approved by the court, and the court's approval of the fee addresses the consent required under Rule 1.8(f). The committee adds that any lawyer paid by a third party must maintain independence under Rule 5.4(c), which bars the payor from directing or regulating the lawyer's professional judgment, and that Rule 1.6 carves out no confidentiality exception for a third-party payor.

In practice

The opinion holds that, under the Virginia rules as they stood at the time, a guardian ad litem may accept the insurer's payment only within Rule 1.8(f), and that because neither the minor nor the guardian can supply the needed consent, the court's approval of the fee serves that role. Per the opinion, the lawyer must still maintain professional independence from the payor under Rule 5.4(c) and protect the child's confidential information under Rule 1.6.

Common questions

Q: Can an insurer pay the fee of a guardian ad litem appointed for a minor?

A: Yes, if Rule 1.8(f) is satisfied (consent, no interference with the lawyer's independent judgment, and protection of Rule 1.6 information). The opinion treats the court's approval of the fee as supplying the consent the minor cannot give.

Q: Who consents to third-party payment when the client is a minor?

A: The opinion states the minor cannot consent and the guardian cannot consent to her own payment, so the court's approval of the guardian ad litem's fee addresses the consent required under Rule 1.8(f).

Q: Must the third-party payment be disclosed to the court?

A: Yes. Drawing on LEO 1725, the opinion says the fee is a matter that should be disclosed to and approved by the court, which acts as gatekeeper for the child's interests.

Q: Does accepting the insurer's payment let the insurer direct the lawyer?

A: No. The opinion points to Rule 5.4(c): the payor may not direct or regulate the lawyer's professional judgment, and Rule 1.6 carves out no confidentiality exception for a third-party payor.

Background and rules framework

The opinion interprets Rule 1.8(f) (Model Rule 1.8(f)), which conditions third-party payment of a lawyer's fee on client consent, non-interference with the lawyer's independent judgment, and protection of confidential information under Rule 1.6. It reads that scheme alongside Rule 5.4(c) (Model Rule 5.4(c)), barring a payor from directing the lawyer's professional judgment, and Rule 1.6 (Model Rule 1.6), the confidentiality duty. The committee situates the consent question within the court's statutory authority over a minor's settlement under Va. Code § 8.01-424.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.8(f) / Virginia Rule 1.8(f) (compensation from one other than the client)
• Model Rule 5.4(c) / Virginia Rule 5.4(c) (independence from a third-party payor)
• Model Rule 1.6 / Virginia Rule 1.6 (confidentiality of information)

Statutes:

• Va. Code § 8.01-424 (court approval of the settlement and distribution of a minor's claim)

Other opinions cited:

• Virginia LEO 1725: disclosure to the appointing court when a guardian ad litem has a potential conflict
• Virginia LEOs 1729, 1762: application of the Rules to a guardian ad litem and a minor's inability to consent

See also

• VA LEO 1844: Guardian ad Litem Confidentiality
• VA LEO 1858: Indemnifying an Insurer to Settle
• ABA Formal Op. 475: Safeguarding Divided Fees
• RI EAP Op. 2009-03: Proposed Multidisciplinary Practice Combining GAL Representation With Mental-Health and Mediation Services Violates Rule 5.4

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1831.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Committee Opinion
September 6, 2006

LEGAL ETHICS OPINION 1831

COMPENSATION OF GUARDIAN AD
LITEM BY INSURER.

You have presented a hypothetical in which an attorney was appointed to serve as
guardian ad litem for a minor plaintiff in a personal injury case. The insurer petitions the
court for approval of the settlement of the minor’s claim. The insurer is willing to pay
the fee of the guardian ad litem for her services as a cost to the insurer of obtaining that
settlement.
With regard to that hypothetical situation, you have asked the Committee to opine with
regard to the following questions:
1) From whom may a guardian ad litem ethically accept fee payment when appointed
by a court to represent a minor in a hearing in which a petitioning insurance company
seeks court approval of the settlement of the minor’s personal injury claim?
2) May the minor’s parent give informed consent to the third party payment, in
resolution of the potential conflict?
The purview of this Committee is exclusively to interpret the Rules of Professional
Conduct. See Rules of the Virginia Supreme Court, Pt. 6, § IV, Para. 10. Determination
of who should properly pay the fee of a guardian ad litem in a particular matter is a legal
question. The Committee notes that Va. Code Section 8.01-424 grants the court the
power to approve the settlement of the minor’s claim and the distribution of the
settlement proceeds. Consequently, the particulars regarding the payment of the guardian
ad litem’s fee are subject to the court’s approval.
Assuming the child is the “client” of the guardian ad litem for purposes of your
inquiry, 1 you ask whether Rule 1.8(f) is applicable to the circumstances presented.
Specifically, Rule 1.8(f) allows for payment of legal fees by third parties with the
following requirements:
A lawyer shall not accept compensation for representing a client from
one other than the client unless:
(1) the client consents after consultation;
(2) there is no interference with the lawyer's independence of
professional judgment or with the client-lawyer relationship; and

1

The Committee does not hold that the child is the “client” of the guardian ad litem. That is a legal issue
outside the purview of the Committee. Nevertheless, the Committee has opined that the Rules of
Professional Conduct may apply to a guardian ad litem representing a child if the rules of conduct are not
inconsistent with the lawyer’s duties as guardian. See LEO 1729.

Committee Opinion
September 6, 2006
(3) information relating to representation of a client is protected as
required by Rule 1.6.
Thus, if the attorney can comply with those requirements, including the requirement of
consent, then the attorney may ethically accept payment of her fee by a third party.
Your request asks just who can provide the consent called for in this situation, as the
client is a minor. Of course, a minor cannot provide that consent 2, and the guardian
cannot consent as it is the guardian’s receipt of third party money that is at issue. In LEO
1725, an attorney in several matters represented the Department of Social Services (DSS)
while simultaneously serving as guardian ad litem in other matters where DSS is a party.
The opinion directs the attorney to disclose to the court appointing him as guardian that
DSS is a client, and the court can decide whether to permit service as guardian. LEO
1725 explains:
It is the duty of the court to see that the GAL faithfully represents and
protects the child’s interests. To do so, the court must appoint a
person…who is discreet and competent and who has no interest adverse
to the child’s interest….The court is a gatekeeper. If a lawyer
contemplates being appointed by the court as GAL for a child and
senses the potential for a conflict of interest…then the attorney…must
make the same full disclosure to the court that he or she would make to
a sui juris client for an informed consent to the representation.
The Committee reiterates that advice for any attorney who will serve or is serving as a
guardian ad litem with a potential conflict of interest, including the attorney in the present
scenario if concerned about payment of her fee by the insurer in this instance.
The Committee takes guidance from LEO 1725. The Committee notes the court has
appointed the GAL and the court will also approve the compromise or settlement of the
minor’s claim. Therefore, the issue of the payment of the GAL’s fee is also a matter that
should be disclosed to and approved by the court. The court’s approval of the GAL’s fee
should address any concern about the “consent” required under Rule 1.8 (f).
The Committee further cautions that any attorney being paid by a third party (such as
the guardian in the present scenario) should be mindful of the need to maintain
professional independence from that third party payor. Specifically, Rule 5.4(c) provides
that the lawyer shall not permit the payor to “direct or regulate the lawyer’s professional
judgment in rendering such services.” The lawyer should be especially sensitive of the
need to maintain this independence in a situation involving a minor child. Additionally,
when a third party is to pay an attorney’s fee, the attorney should be mindful that Rule
1.6, outlining the duty of confidentiality, carves out no exception to that client protection
for disclosures to third party payors.
2

See LEO 1762 (noting that while a minor may never provide any consent required by the Rules, whether
any individual such as a parent, guardian, or next friend can provide valid consent for a minor is a legal
question outside the purview of the Committee).

Committee Opinion
September 6, 2006

This opinion is advisory only, and not binding on any court or tribunal.